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Juvenile's records not protected by counselor/client privilege

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The Howard Superior Court erred in finding that the counselor/client privilege prevented the admission of a son’s counseling records during a custody modification hearing, the Indiana Court of Appeals ruled today.

The trial court ruled that W.B.’s counseling records, which included his counselor’s notes, summaries, risk assessments, and status reports, were privileged and that no exception to the counselor/client privilege applied.

W.B. was adjudicated a delinquent after he admitted to a sexual battery charge against his sister A.B. A.B. and W.B. lived with their mother who had physical custody of the children after the mother and father divorced. When the father learned W.B. had touched his sister inappropriately, he reported it to Child Protective Services and A.B. moved in with her maternal grandparents due to a no-contact order between the siblings.

W.B. went to counseling, in which his social worker found he remained at a high risk to re-offend. W.B. was eventually discharged from treatment, his probation ended, and the no-contact order ended. A.B. moved back in to live with her mother and brother. That’s when the father petitioned for modification of custody seeking physical custody of A.B. due to the threat of potential molestations by W.B.

The trial court denied father’s petition to modify custody, finding A.B. is older and in school, and while the charges are substantial, they aren’t enough to modify custody.

The counselor/client privilege is set forth in Indiana Code Section 25-23.6-6-1, but it is subject to exceptions. I.C. Section 31-32-11-1 abrogates the privilege in proceedings resulting from reports of child abuse.

“The statute has been applied for the most part in criminal prosecutions,” Judge Nancy Vaidik wrote in J.B. v. E.B. No.34A04-1002-DR-110. “But Section 31-32-11-1 is worded broadly and abrogates the enumerated privileges in ‘any judicial proceeding’ resulting from a report of child abuse or ‘relating to the subject matter of the report.’”   

A.B. reported that her brother touched her inappropriately, which led to W.B.’s delinquency proceedings and the father’s petition to modify custody. He wants to prevent further abuse of A.B., and the privileged information concerns the brother’s potential to re-offend.

“In line with the foregoing, we conclude that the instant case is a proceeding within the purview of Section 31-32-11-1 and in which the counselor/client privilege does not apply,” she wrote. “We therefore find the trial court erred in excluding W.B.’s counseling records on the basis of privilege. We also cannot say the error was harmless, given the content of W.B.’s counseling records and the limited grounds on which the trial court based its ruling.”

The case was remanded for further proceedings.
 

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  1. Welcome to Hendricks County where local and state statutes (especially Indiana Class C misdemeanors) are given a higher consideration than Federal statues and active duty military call-ups.

  2. If real money was spent on this study, what a shame. And if some air-head professor tries to use this to advance a career, pity the poor student. I am approaching a time that i (and others around me) should be vigilant. I don't think I'm anywhere near there yet, but seeing the subject I was looking forward to something I might use to look for some benchmarks. When finally finding my way to the hidden questionnaire all I could say to myself was...what a joke. Those are open and obvious signs of any impaired lawyer (or non-lawyer, for that matter), And if one needs a checklist to discern those tell-tale signs of impairment at any age, one shouldn't be practicing law. Another reason I don't regret dropping my ABA membership some number of years ago.

  3. The case should have been spiked. Give the kid a break. He can serve and maybe die for Uncle Sam and can't have a drink? Wow. And they won't even let him defend himself. What a gross lack of prosecutorial oversight and judgment. WOW

  4. I work with some older lawyers in the 70s, 80s, and they are sharp as tacks compared to the foggy minded, undisciplined, inexperienced, listless & aimless "youths" being churned out by the diploma mill law schools by the tens of thousands. A client is generally lucky to land a lawyer who has decided to stay in practice a long time. Young people shouldn't kid themselves. Experience is golden especially in something like law. When you start out as a new lawyer you are about as powerful as a babe in the cradle. Whereas the silver halo of age usually crowns someone who can strike like thunder.

  5. YES I WENT THROUGH THIS BEFORE IN A DIFFERENT SITUATION WITH MY YOUNGEST SON PEOPLE NEED TO LEAVE US ALONE WITH DCS IF WE ARE NOT HURTING OR NEGLECT OUR CHILDREN WHY ARE THEY EVEN CALLED OUT AND THE PEOPLE MAKING FALSE REPORTS NEED TO GO TO JAIL AND HAVE A CLASS D FELONY ON THERE RECORD TO SEE HOW IT FEELS. I WENT THREW ALOT WHEN HE WAS TAKEN WHAT ELSE DOES THESE SCHOOL WANT ME TO SERVE 25 YEARS TO LIFE ON LIES THERE TELLING OR EVEN LE SAME THING LIED TO THE COUNTY PROSECUTOR JUST SO I WOULD GET ARRESTED AND GET TIME HE THOUGHT AND IT TURNED OUT I DID WHAT I HAD TO DO NOT PROUD OF WHAT HAPPEN AND SHOULD KNOW ABOUT SEEKING MEDICAL ATTENTION FOR MY CHILD I AM DISABLED AND SICK OF GETTING TREATED BADLY HOW WOULD THEY LIKE IT IF I CALLED APS ON THEM FOR A CHANGE THEN THEY CAN COME AND ARREST THEM RIGHT OUT OF THE SCHOOL. NOW WE ARE HOMELESS AND THE CHILDREN ARE STAYING WITH A RELATIVE AND GUARDIAN AND THE SCHOOL WON'T LET THEM GO TO SCHOOL THERE BUT WANT THEM TO GO TO SCHOOL WHERE BULLYING IS ALLOWED REAL SMART THINKING ON A SCHOOL STAFF.

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